« Stephan Shakespeare is away | Main | Peter Franklin: We need a Cabinet Minister dedicated to delivering financial stability »



I would have thought that an advisory jury would have the same effect as no jury. The people would no longer be the final arbiters of our laws. If a judge can overrule a jury then it is waste of time to have a jury in the first place, if the state can choose in which cases it will allow a jury then it becomes state law and not peoples law.

Tony Makara

This is a very complicated issue because we want people's juries in the name of democracy, yet clearly some people lack the maturity or intelligence for jury service. The OJ Simpson case in the states was a classic example of the failures of the jury system. Perhaps it would help if juries were more rigorously selected with tests for emotional maturity and the ability to comprehend a criminal case.

William Norton

Tony Makara:The OJ Simpson case in the states was a classic example of the failures of the jury system.

A failure only in the sense that it illustrates a greater strength. When it came to the crunch, the jury weren't prepared to believe the Police, whose credibility had been shredded during the trial. An equivalent here might be, say, the Ponting trial where a jury wasn't prepared to convict for leaking the papers about the Belgrano. When policemen complain about clever lawyers it's usually a sign of unclever policemen.

Failure to secure a conviction doesn't necessarily mean the jury part of the system is the cause of the failure. Fraud trials might well run more smoothly with a jury of 12 City solicitors (but don't bet on it), but wouldn't a better approach be to employ a more competent Serious Fraud Office or enact simpler legislation?

After all, we've had a spot of bother with expert witnesses over the years. Would people be happier if, say, religious hatred cases were adjudicated by a panel of expert ayatollahs, or all child abuse cases overseen by Islington social services?

Tony Makara

William Norton, a big concern has to be when juries have to oversee complicated cases involving finance and the like. Such cases really ought to require a competency-test being taken to ensure that the subject matter is understood. To allow any citizen, no matter how level-headed and fair, to judge complex cases becomes a lottery.

Returning to the Pointing case, I remember at the time I was 22 and thought of him as being a traitor and if I had been asked to serve on a jury, at that age, I wouldn't have been able to given him a fair trial. Of course now 23 years later I'd be more inclined to judge the case on its merits rather than on my own emotions. So I think its a case of jurors being ready, emotionally mature, and intellectually able to understand the situation.

David Belchamber

Has any thought ever been given to reversing the roles in a jury trial? The judge - a trained lawyer sitting in a court the whole time, able to question witnesses - is best placed to ascertain guilt.

If s/he gets it wrong, the defendant can appeal and if too many of the judge's verdicts are overturned, s/he is clearly not a very good judge.

Judges are not always very good with the sentences they hand down and a jury might well be more on the ball than the judge in this respect.

Tony Makara

David Belchamber, I feel the QC already does that job to great effect but I'd certainly like to see judges elected to reflect public attitudes to sentencing. People can decide whether they want a liberal judge or more of a hardliner. There are many factors involved in setting the right sentence and no two cases are the same so absolute expertise is required.

Angelo Basu

Perhaps this is all coming at things from the wrong end.

If a case cannot be put simply and clearly enough to make it intelligible to a jury it suggests to me that perhaps the charge should not have been brought in the first place. This is particularly true in the high profile instances typically used to defend proposals to remove juries, ie fraud and cartel cases (the latter being yet another unnecessary bit of NuLab legislation given that the entirety of the cartel offence was already covered by the Common Law offence of conspiracy to defraud). However, the underlying factual issue to be determined in both of those sorts of case is the dishonesty of the defendant. Over many years there have been attempts to define dishonesty but in the end, its power and value as a measure of criminality and the moral sanction that goes with it is that the concept is one that should be clearly intelligible by all decent law-abiding citizens.

The difficulty comes in asking juries to infer from what was done or omitted to be done by the defendant that he was dishonest because defining those acts and omissions is problematic. However, the value of a jury is precisely there because we are all able to cut through detail to make a judgment as to whether someone behaved in an honest/neutral way or dishonestly.

This can lead to uneven application (eg the perception in the early 90s that Snaresbrook juries were much less likely to consider certain sorts of behaviour to be dishonest than any other juries possibly as a result of the prevaling mores of its East End catchment area), but that is in the nature of any system which places value on making criminal sanctions dependent on the beliefs of the general public which will have different attitudes in different areas. Judges are no different and all vary as to the sorts of scrote they will treat strictly and the ones who even if guilty are not "amongst the worst" sort they come across. Resources and concentrations of particular types of crime also distort the treatment received (eg in the mid 90s Dover Magistrates would accept any half-plausible story about personal use to accept guilty pleas and impose non-custodial sentences for importation of up to a kilo of marijuana, whereas anywhere else in the country, possession of a tiny fraction of that amount would be pursued by the Police and CPS as possession with intent to supply and almost certainly lead to imprisonment).

A former Lord Chief Justice suggested in a humorous after-dinner speech that English Criminal law could be drastically simplified without the real loss of any effectiveness by replacing the entire cannon with two new broad offences; first, being out of order and second, being bang out of order. The art of prosecuting Counsel really is to demonstrate to the jury that one of these "offences" has been committed, just in the context of the more complex indictments and law that exists. As defence Counsel, if you can cast doubt as to whether the defendant really has been out of order (you know you're onto a winner if you can get jurors to giggle at prosecution witnesses' evidence) your man is likely to walk free.

On the issue of use of juries in sentencing, this is interesting and would certainly help to restore confidence in the penal system (I suspect that juries would actually not end up handing out massively longer sentences across the board but would probably put more weight on pleas in mitigation and psychological and other factors than case hardened judges do). However, this could only be done in practical terms if there were no significant capacity constraints in terms of prison and non-custodial remedies. It might be a good counterbalance to criticism of the policy to build a large number of new prison places to introduce jury decisions on sentencing.

Matt Wright

Jury trial should not be withdrawn because the case cannot be put in a way that the public can understand. I dread to think where that would lead! God save us from experts! I agree with Andrew's original points but would tend to uphold them rather than start giving in. The only possible concession would be to ask potential jurors to present CVs in the tiny minority of cases that exhibit special complications. Then jurors could be randomly selected from a filtered pool for that rare situation only. Otherwise I would rather that we had a rock solid written constitution to stop any Govt ever fiddling with this.

Angelo Basu

Matt- it is already possible for some degree of jury screening to occur. It is quite common while empanelling a jury in a case involving substantial amounts of documentary evidence of a numerical nature for the trial judge to ask if any jurors have difficulties with their eyesight or reading and understanding such documents. As this is not done in open court I've often seen jurors excusing themselves in this way (it is of course also a good way if you are on jury service to avoid lengthy and dull cases in the hope of getting something more juicy). There is also some scope for asking for certain jurors to be excused (eg if defending a rape case a juror walks in carrying some tract of feminist theory you'd probably ask for them not to be in your jury).

Matt Wright

Thanks Angelo, that would lend weight to my idea that in a few special caes we could ask for CVs and draw the jury randomly from a pool of people so screened. Otherwise as I say I really don't think we should meddle here and we should require cases to fought in suha a way tha the public and those involved can understand them!

The comments to this entry are closed.

  • Tracker 2
  • Extreme Tracker